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News Flash: Watching the Erin Andrews Video Is Perverted, Not Illegal

"The Early Show" spoke with CBS News Legal Analyst Lisa Bloom, who said downloading or watching the nude Erin Andrews video is illegal.

"Its like buying or selling stolen property," said Bloom. "If you
know you are buying something that was stolen... you could be liable
criminally and civilly."(Source)

Oops. Looks like the CBS reporter who wrote this piece should have asked for a second legal opinion. Unlike the hacked Twitter documents, this video is not even arguably stolen property. The creepy videographer probably violated state "Peeping Tom" or criminal surveillance laws, and is likely liable to Andrews for intrusion, but this doesn't make the video or the images contained in it stolen, as Ms. Bloom implies. So, there's no chance that Internet users viewing or downloading the video are violating state criminal laws against receipt or sale of stolen property. And given that we're not dealing with child pornography or legally obscene material, I fail to see any other ground for saying that viewing or downloading the video is a crime. Admittedly, that doesn't mean it's not icky.

According to Photography is Not a Crime’s legal analyst Marc Randazza (yes, I have a few, so take that, CBS), Bloom is talking out of her ass.

“That CBS analyst needs more legal education and less melodrama,”
the Florida First Amendment attorney said in an email responding to my
question.

He also added that although it is
completely legal to download and view the video, he didn’t have much
respect for anybody who would.

“Anyone who does download it is kind
of an asshole,” he said. “She did have an expectation of privacy. We
live in a society where the sleazes and the lowest common denominator
individuals seem to thrive. If we dried up their mud flats, they would
die off.

“What I mean by that is that downloading the video is legal[,] but
doing so is a douchebag move. I certainly won’t be downloading it
(although I personally would love to see her naked too).” (Source)

Publishing the video, on the other hand, could create civil liability for invasion of privacy through the publication of private facts or violate state criminal surveillance laws that prohibit publication of "video voyeurism" images. For example, New York makes it a crime to publish such images when the publisher has knowledge that they were unlawfully obtained. See N.Y. Penal Law § 250.55.
(link is to the entire code, you need to click on the Penal Code
section, then choose Article 250 and locate the specific provision).

Certainly, the First Amendment protects publication of materials illegally obtained by a third party when they relate to a matter of public concern, as detailed in my post on the TechCrunch/Twitter imbroglio. This might help a news site or blogger who published a screenshot or very short (and harmless) excerpt from the video in the course of covering the hoopla surrounding the dissemination of the video on the Internet. (If the number of news stories is any indication of newsworthiness, this is a pretty newsworthy topic.)

But, I would be amazed if a court found publication of the entire video to be protected by the First Amendment -- the existence of the video and its presence online might be a matter of legitimate public concern, but the frame-by-frame images of Andrews alone in her hotel room probably are not. The situation reminds me of one dated but nonetheless effective statement of the test for newsworthiness: "The line is to be drawn when the publicity ceases to
be the giving of information to which the public is entitled, and
becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern." Virgil v. Time, Inc.,
527 F.2d 1122, 1129 (9th Cir. 1975) (emphasis added). Publishing images of Ms. Andrews' private moments in her hotel room strike me as precisely this kind of "morbid and sensational prying."

Putting aside the First Amendment, section 230 of the Communications Decency Act might well protect those online publishers brave enough to risk a nasty computer virus and unscrupulous enough to publish the video, assuming they obtained a copy from elsewhere online. Section 230 has no newsworthiness requirement -- it immunizes "interactive computer services" from liability for publishing content obtained from "another information content provider," at least with respect to state criminal laws and torts like invasion of privacy. So, does this mean you should join the masses searching for the video and post away confident in Section 230's protection? Of course not. If just watching or downloading the video is "a douchebag move," just think of what Mr. Randazza would call you for hosting this content.

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